Punish ments. Severity of eight horses, is represented by Livy as the first and the last instance of Roman cruelty in the punishment of the most atrocious crimes.171 But this act of justice or revenge was inflicted on a foreign enemy in the heat of victory, and at the command of a single man. The Twelve Tables afford a more decisive the Twelve proof of the national spirit, since they were framed by the Tables. wisest of the senate and accepted by the free voices of the people; yet these laws, like the statutes of Draco,172 are written in characters of blood.173 They approve the inhuman and unequal principle of retaliation; and the forfeit of an eye for an eye, a tooth for a tooth, a limb for a limb, is rigorously exacted, unless the offender can redeem his pardon by a fine of three hundred pounds of copper. The decemvirs distributed with much liberality the slighter chastisements of flagellation and servitude; and nine crimes of a very different complexion are adjudged worthy of death. 1. Any act of treason against the state, or of correspondence with the public enemy. The mode of execution was painful and ignominious: the head of the degenerate Roman was shrouded in a veil, his hands were tied behind his back, and, after he had been scourged by the lictor, he was suspended in the midst of the forum on a cross, or inauspicious tree. 2. Nocturnal meetings in the city, whatever might be the pretence —of pleasure, or religion, or the public good. 3. The murder of a citizen; for which the common feelings of mankind demand the blood of the murderer. Poison is still more odious than the sword or dagger; and we are surprised to discover, in two flagitious events, how early such subtle wickedness had infected the simplicity of the republic and the chaste virtues of the Roman matrons.174 The parricide, who violated the duties of nature and gratitude, was cast into the river or the sea, enclosed in a sack; and a cock, a viper, a dog, and a monkey, were successively added as the most suitable companions.175 Italy 171 The narrative of Livy (i. 28) is weighty and solemn. At tu dictis, Albane, ma neres, is an harsh reflection, unworthy of Virgil's humanity (Æneid. viii. 643). Heyne, with his usual good taste, observes that the subject was too horrid for the shield of Eneas (tom. iii. p. 229). 172 The age of Draco (Olympiad xxxix. 1) is fixed by Sir John Marsham (Canon Chronicus, p. 593-596) and Corsini (Fasti Attici, tom. iii. p. 62). For his laws, see the writers on the government of Athens, Sigonius, Meursius, Potter, &c. 173 The viith, de delictis, of the xii tables is delineated by Gravina (Opp. p. 292, 293, with a commentary, p. 214-2.30). Aulus Gellius (xx. 1) and the Collatio Leguin Mosaicarum et Romanarum afford much original information. 174 Livy mentions two remarkable and flagitious æras, of 3000 persons accused, and of 190 noble matrons convicted, of the crime of poisoning (xl. 43, viii. 18). Mr. Hume discriminates the ages of private and public virtue (Essays, vol. i. p. 22, 23). I would rather say that such ebullitions of mischief (as in France in the year 1680) are accidents and prodigies which leave no marks on the manners of a nation. 175 The xii tables and Cicero (pro Roscio Amerino, c. 25, 26) are content with the Back; Seneca (Excerpt. Controvers. v. 4) adorns it with serpents; Juvenal pities the guiltless monkey (innoxia simia-Satir. xiii. 156). Adrian (apud Dositheum Magin produces no monkeys; but the want could never be felt till the middle of the sixth century first revealed the guilt of a parricide. 176 4. The malice of an incendiary. After the previous ceremony of whipping, he himself was delivered to the flames; and in this example alone our reason is tempted to applaud the justice of retaliation. 5. Judicial perjury. The corrupt or malicious witness was thrown headlong from the Tarpeian rock to expiate his falsehood, which was rendered still more fatal by the severity of the penal laws and the deficiency of written evidence. 6. The corruption of a judge, who accepted bribes to pronounce an iniquitous sentence. 7. Libels and satires, whose rude strains sometimes disturbed the peace of an illiterate city. The author was beaten with clubs, a worthy chastisement; but it is not certain that he was left to expire under the blows of the executioner. 177 8. The nocturnal mischief of damaging or destroying a neighbour's The criminal was suspended as a grateful victim to Ceres. But the sylvan deities were less implacable, and the extirpation of a more valuable tree was compensated by the moderate fine of twentyfive pounds of copper. 9. Magical incantations; which had power, in the opinion of the Latian shepherds, to exhaust the strength of an enemy, to extinguish his life, and to remove from their seats his deeprooted plantations. The cruelty of the Twelve Tables against insolvent debtors still remains to be told; and I shall dare to prefer the literal sense of antiquity to the specious refinements of modern criticism. 178 a After the judicial proof or confession of the debt, thirty days of grace were allowed before a Roman was delivered into the power of his fellow-citizen. In this private prison twelve ounces of rice were his daily food; he might be bound with a chain of fifteen pounds weight; and his misery was thrice exposed in the market-place, to solicit the corn. trum, 1. iii. c. 16, p. 874-876, with Schulting's Note), Modestinus (Pandect. xlviii. tit. ix. leg. 9), Constantine (Cod. 1. ix. tit. xvii.), and Justinian (Institut. 1. iv. tit. xviii.), enumerate all the companions of the parricide. But this fanciful execution was simplified in practice. Hodie tamen vivi exuruntur vel ad bestias dantur (Paul. Sentent. Recept. 1. v. tit. xxiv. p. 512, edit. Schulting (Jurispr. Ante-Justin.]). 176 The first parricide at Rome was L. Ostius, after the second Punic war (Plutarch in Romulo [c. 22], tom. i. p. 57). During the Cimbric, P. Malleolus was guilty of the first matricide (Liv. Epitom. 1. lxviii.). 177 Horace talks of the formidine fustis (1. ii. Epist. i. 154), but Cicero (de Republicâ, 1. iv. apud Augustin. de Civitat. Dei, ix. 6, in Fragment. Philosoph. tom. iii. p. 393, edit. Olivet) affirms that the decenivirs made libels a capital offence: cum perpaucas res capite sanxissent-perpaucas ! 178 Bynkershoek (Observat. Juris Rom. 1. i. c. 1, in Opp. tom. i. p. 9, 10, 11) labours to prove that the creditors divided not the body, but the price, of the insolvent debtor. Yet his interpretation is one perpetual harsh metaphor; nor can he surmount the Roman authorities of Quintilian, Cæcilius, Favonius, and Tertullian. See Auus Gellius, Noct. Attic. xx. 1 [tom. ii. p. 285]. Hugo (Histoire du Droit Romain, tom. i. p. 234) concurs with Gibbon. See Niebuhr vol. ii. p. 313.--M. compassion of his friends and countrymen. At the expiration of sixty days the debt was discharged by the loss of liberty or life; the insolvent debtor was either put to death or sold in foreign slavery beyond the Tiber: but, if several creditors were alike obstinate and unrelenting, they might legally dismember his body, and satiate their revenge by this horrid partition. The advocates for this savage law have insisted that it must strongly operate in deterring idleness and fraud from contracting debts which they were unable to discharge; but experience would dissipate this salutary terror, by proving that no creditor could be found to exact this unprofitable penalty of life or limb. As the manners of Rome were insensibly polished, the criminal code of the decemvirs was abolished by the humanity of accusers, witnesses, and judges; and impunity became the consequence of immoderate rigour. The Porcian and Valerian laws prohibited the magistrates from inflicting on a free citizen any capital, or even corporal, punishment; and the obsolete statutes of blood were artfully, and perhaps truly, ascribed to the spirit, not of patrician, but of regal, tyranny. Abolition or oblivion of penal laws. In the absence of penal laws and the insufficiency of civil actions, the peace and justice of the city were imperfectly maintained by the private jurisdiction of the citizens. The malefactors who replenish our gaols are the outcasts of society, and the crimes for which they suffer may be commonly ascribed to ignorance, poverty, and brutal appetite. For the perpetration of similar enormities, a vile plebeian might claim and abuse the sacred character of a member of the republic; but on the proof or suspicion of guilt the slave or the stranger was nailed to a cross, and this strict and summary justice might be exercised without restraint over the greatest part of the populace of Rome. Each family contained a domestic tribunal, which was not confined, like that of the prætor, to the cognizance of external actions: virtuous principles and habits were inculcated by the discipline of education, and the Roman father was accountable to the state for the manners of his children, since he disposed without appeal of their life, their liberty, and their inheritance. In some pressing emergencies, the citizen was authorised to avenge his private or public wrongs. The consent of the Jewish, the Athenian, and the Roman laws, approved the slaughter of the nocturnal thief; though in open daylight a robber could not be slain without some previous evidence of danger and complaint. Whoever surprised an adulterer in his nuptial bed might freely exercise his revenge ;' ;179 the most bloody or wanton outrage was excused 179 The first speech of Lysias (Reiske, Orator. Græc. tom. v. p. 2-48) is in defence of an husband who had killed the adulterer. The rights of husbands and fathers at by the provocation;180 nor was it before the reign of Augustus that the husband was reduced to weigh the rank of the offender, or that the parent was condemned to sacrifice his daughter with her guilty seducer. After the expulsion of the kings, the ambitious Roman who should dare to assume their title or imitate their tyranny was devoted to the infernal gods: each of his fellow-citizens was armed with the sword of justice; and the act of Brutus, however repugnant to gratitude or prudence, had been already sanctified by the judgment of his country.181 The barbarous practice of wearing arms in the midst of peace,182 and the bloody maxims of honour, were unknown to the Romans; and during the two purest ages, from the establishment of equal freedom to the end of the Punic wars, the city was never disturbed by sedition, and rarely polluted with atrocious crimes. The failure of penal laws was more sensibly felt when every vice was inflamed by faction at home and dominion abroad. In the time of Cicero each private citizen enjoyed the privilege of anarchy-each minister of the republic was exalted to the temptations of regal power, and their virtues are entitled to the warmest praise as the spontaneous fruits of nature or philosophy. After a triennial indulgence of lust, rapine, and cruelty, Verres, the tyrant of Sicily, could only be sued for the pecuniary restitution of three hundred thousand pounds sterling; and such was the temper of the laws, the judges, and perhaps the accuser himself,183 that, on refunding a thirteenth part of his plunder, Verres could retire to an easy and luxurious exile, 184 The first imperfect attempt to restore the proportion of crimes and punishments was made by the dictator Sylla, who, in the midst of his sanguinary triumph, aspired to restrain the licence rather than Rome and Athens are discussed with much learning by Dr. Taylor (Lectiones Lysiacæ, c. xi. in Reiske, tom. vi. p. 301-308). 180 See Casaubon ad Athenæum, 1. i. c. 5, p. 19. Percurrent raphanique mugilesque (Catull. [xv. 18] p. 41, 42, edit. Vossian.). Hunc mugilis intrat (Juvenal. Satir. x. 317). Hunc perminxere calones (Horat. 1. i. Satir. ii. 44). Familia stuprandum dedit [objecit]... fraudi non fuit (Val. Maxim. 1. vi. c. 1, No. 13). 181 This law is noticed by Livy (ii. 8) and Plutarch (in Publicola [c. 12]. tom. i. p. 187), and it fully justifies the public opinion on the death of Cæsar, which Suetonius could publish under the Imperial government. Jure casus existimatur (in Julio, c. 76). Read the letters that passed between Cicero and Matius a few months after the ides of March (ad Fam. xi. 27, 28). 182 Πρῶτοι δὲ Αθηναῖοι τόν τε σίδηρον κατέθεντο. Thucydid. l. i. c. 6. The historian who considers this circumstance as the test of civilisation would disdain the barbarism of an European court. 183 He first rated at millies (800,0001.) the damages of Sicily (Divinatio in Cæcilium, c. 5), which he afterwards reduced to quadringenties (320,000.-1 Actio in Verrem, c. 18), and was finally content with tricies (24,0001.). Plutarch (in Ciceron. [c. 8] tom. iii. p. 1584) has not dissembled the popular suspicion and report. 184 Verres lived near thirty years after his trial, till the second triumvirate, when he was proscribed by the taste of Mark Antony for the sake of his Corinthian plate (Plin. Hist. Natur. xxxiv. 3). Revival of to oppress the liberty of the Romans. He gloried in the arbitrary proscription of four thousand seven hundred citizens. 185 capital pu- But, in the character of a legislator, he respected the prejunishments. dices of the times; and instead of pronouncing a sentence of death against the robber or assassin, the general who betrayed an army or the magistrate who ruined a province, Sylla was content to aggravate the pecuniary damages by the penalty of exile, or, in more constitutional language, by the interdiction of fire and water. The Cornelian, and afterwards the Pompeian and Julian laws, introduced a new system of criminal jurisprudence ;186 and the emperors, from Augustus to Justinian, disguised their increasing rigour under the names of the original authors. But the invention and frequent use of extraordinary pains proceeded from the desire to extend and conceal the progress of despotism. In the condemnation of illustrious Romans, the senate was always prepared to confound, at the will of their masters, the judicial and legislative powers. It was the duty of the governors to maintain the peace of their province by the arbitrary and rigid administration of justice; the freedom of the city evaporated in the extent of empire, and the Spanish malefactor who claimed the privilege of a Roman was elevated by the command of Galba on a fairer and more lofty cross." Occasional rescripts issued from the throne to decide the questions which, by their novelty or importance, appeared to surpass the authority and discernment of a proconsul. Transportation and beheading were reserved for honourable persons; meaner criminals were either hanged, or burnt, or buried in the mines, or exposed to the wild beasts of the amphitheatre. Armed robbers were pursued and extirpated as the enemies of society; the driving away horses or cattle was made a capital offence;188 but simple theft was uniformly considered as a mere civil 187 185 Such is the number assigned by Valerius Maximus (1. ix. c. 2, No. 1). Florus (iii. 21) distinguishes 2000 senators and knights. Appian (de Bell. Civil. 1. i. c. 95, tom. ii. p. 133, edit. Schweighaüser) more accurately computes 40 victims of the senatorian rank and 1600 of the equestrian census or order. 186 For the penal laws (Leges Cornelia, Pompeia, Juliæ, of Sylla, Pompey, and the Cæsars), see the sentences of Paulus (1. iv. tit. xviii.-xxx. p. 497-528, edit. Schulting), the Gregorian Code (Fragment. 1. xix. p. 705, 70€, in Schulting), the Collatio Legum Mosaicarum et Romanarum (tit. i.-xv.), the Theodosian Code (I. ix.), the Code of Justinian (1. ix.), the Pandects (xlviii.), the Institutes (1. iv. tit. xviii.), and the Greek version of Theophilus (p. 917-926). 187 It was a guardian who had poisoned his ward. The crime was atrocious: yet the punishment is reckoned by Suetonius (c. 9) among the acts in which Galba showed himself acer, vehemens, et in delictis coercendis immodicus. 188 The abactores or abigeatores, who drove one horse, or two mares or oxen, or five hogs, or ten goats, were subject to capital punishment (Paul. Sentent. Recept. 1 iv. tit. xviii. p. 497, 498). Hadrian (ad Concil. Bætica), most severe where the offence was most frequent, condemns the criminals, ad gladium, ludi damnationem (Ulpian, de Officio Proconsulis, 1. viii. in Collatione Legum Mosaic. et Rom. tit. xi. p. 236 [ed Cannegieter, 1774]). |